Alexander v. Davis-Director TDCJ-CID

Filing 6

MEMORANDUM OPINION and ORDER: It is ORDERED that the petition of petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, dismissed without prejudice as an unauthorized successive petition. Petitioner has not made a showing that reasonable jurists would question this court's procedural ruling. Therefore, it is further ORDERED that a certificate of appealability be, and is hereby, denied. (Ordered by Judge John McBryde on 5/31/2017) (tln)

U.S. DISTRJCT COURT
NORTHERN DTSTR'rT OF TEXAS

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ~EXAS
FORT WORTH DIVISION

MAY 3 I 2017

CL~

WALTON JOHN ALEXANDER,

BY--------------------Deputy

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Petitioner,

~OURT

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v.

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No. 4:17-CV-440-A

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LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,

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Respondent.

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MEMORANDUM OPINION
and
ORDER

This is a petition for a writ of habeas corpus pursuant to
28 U.S.C.

§

2254 filed by petitioner, Walton John Alexander, a

state prisoner confined in the Correctional Institutions Division
of the Texas Department of Criminal Justice (TDCJ) , against Lorie
Davis, director of TDCJ, respondent. After having considered the
pleadings, state court records, and relief sought by petitioner,
the court has concluded that the petition should be summarily
dismissed as an unauthorized successive petition. No service has
issued upon respondent.

I.

Factual and Procedural History

In August 1997 petitioner was convicted in Erath County,
Texas, Case No. 10295, of indecency with a child and sentenced to

75 years' confinement. 1 Petitioner has filed two prior federal
habeas petitions in this court challenging the same conviction
and/or sentence. Pet., Alexander v. Quarterman, No. 4:07-CV-678Y, ECF No. 1; Pet., Alexander v. Davis, No. 4:16-CV-1062-0.

II. Issues
In three grounds for relief, petitioner raises the following
claims:
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His 75-year sentence is void and illegal as it
exceeds the maximum allowed by state statute;
The trial court erred by considering the sentence
enhancement evidence prior to entry of his plea to
the enhancement allegations; and
He was denied effective assistance of trial
counsel who failed to present plea offers and to
be cognizant of current state statutes and case
law.

(Pet. 5-6, ECF No. 1.)

III. Nature of Suit
Petitioner filed this habeas petition on a form § 2241
petition. Petitioner asserts that § 2241 is the proper vehicle
for raising his claims because he is challenging the execution of
his sentence, and not the validity of the sentence itself.

(Pet.,

Prayer, ECF No. 1.) Assuming, without deciding, that a§ 2241 is

1

The court takes judicial notice of the state court records filed in
petitioner's prior federal habeas actions.

2

properly used by a person in state-custody to attack the manner
in which a state sentence is being carried out, rather than the
validity of the sentence, petitioner clearly challenges the
validity of his conviction and 75-year sentence. See United
States v. Tubwell, 37 F.3d 175, 177 (1994)

(construing a § 2255

motion as a § 2241 petitioner because the petitioner challenged
the manner in which his sentence was being executed rather than
the validity of his conviction or sentence) ; Jimenez v. Director,
No. 9:08-CV-214, 2009 WL 152714, at *2 (E.D.Tex. Jan. 21, 2009)
(citing cases). Cf. In re Wright, 826 F.3d 774, 778 (4th Cir.
2016)

(providing that the "majority view is that § 2241 habeas

petitions from convicted state prisoners challenging the
execution of a sentence are governed by § 2254" and concluding
that "regardless of how they are styled, federal habeas petitions
of prisoners who are 'in custody pursuant to the judgment of a
State court' should be treated as 'applications under section
2254' for purposes of§ 2244(b), even if they challenge execution
of a state sentence")

(citing cases). A state prisoner may not

use the general provisions found in 28 U.S.C. § 2241 to
circumvent restrictions applicable to § 2254 actions. See 28
U.S.C. § 2254(a); Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir.
2000)

(addressing a petitioner's attempt to circumvent the
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restriction on filing successive motions under 28 U.S.C.

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2255);

Williams v. O'Brien, No. 4:06-CV-834-Y, 2007 WL 60487, at *1

(N.D.Tex. Jan. 5, 2007). Section 2254 specifically governs any
constitutional challenge to a state prisoner's state conviction
or sentence. Thus, the instant petition is properly characterized
as a petition under

2254.

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IV. Successive Petition
Having so found,
second or successive

28 U.S.C.
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2244(b) requires dismissal of a

2254 petition filed by, or on behalf of, a

state prisoner unless specified conditions are met. 28 U.S.C.

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2244(b) (1)-(2). A petition is successive when it raises a claim
or claims challenging the petitioner's conviction or sentence
that were or could have been raised in an earlier petition or
otherwise constitutes an abuse of the writ. See Crone v.
Cockrell, 324 F.3d 833, 837 (5th Cir. 2003); In re Cain, 137 F.3d

234, 235 (5th Cir. 1998). Before a petitioner may file a
successive

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2254 petition, he must obtain authorization from the

appropriate court of appeals. 28 U.S.C.

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2244(b) (3) (A).

The claims raised herein were or could have been raised in
petitioner's earlier petitions. 2 Thus, from the face of the
2

Petitioner raised one or more of the same or similar claims in his
"Motion for vacation of Void Judgment," regarding the validity of his
sentence, which was construed as a second habeas petition by this court. The

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instant petition and court records, it is apparent that this is a
successive petition, and petitioner neither asserts nor
demonstrates that he has obtained authorization to file the
petition from the appropriate court of appeals. Thus, petitioner
must seek authorization from the United States Court of Appeals
for the Fifth Circuit to file the petition in this court. See 28
U.S.C.

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2244(b) (1)-(3). Without such authorization, this court

is without jurisdiction to consider the petition. 3 See United

States v. Orozco-Ramirez, 211 F. 3d 862, 867 (5th Cir.2000);
Hooker v. Sivley, 187 F.3d 680, 681-82 (5th Cir.1999).
For the reasons discussed herein,
It is ORDERED that the petition of petitioner for a writ of
habeas corpus pursuant to 28 U.S.C.

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2254 be, and is hereby,

dismissed without prejudice as an unauthorized successive
petition. Petitioner has not made a showing that reasonable
jurists would question this court's procedural ruling. Therefore,

petition was transferred to the Fifth Circuit Court of Appeals, where
authorization to file a successive § 2254 petition was denied. (Order & USCA
J., Alexander v. Davis, No. 4:16-CV-1062-0, ECF Nos. 4 & 6.)
3

Because the court lacks jurisdiction, no ruling is made on petitioner's
application to proceed in forma pauperis. (Appl., ECF No. 2.)

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it is further ORDERED that a certificate of appealability be, and
is hereby, denied.
SIGNED May

--~Jr~~~---'

2017.

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